Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2009/1715_08IT.html
Cite as: [2009] NIIT 1715_08IT, [2009] NIIT 1715_8IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1715/08

CLAIMANT: Clare Francis Doherty

RESPONDENTS: 1. Belfast Tile Company Limited

2. Managing Director, Isidron Zarzoso

DECISION

The unanimous decision of the tribunal is as follows:-

1. that the claims against the second respondent Isidron Zarzoso are dismissed in their entirety

2. that the claimant was discriminated against on the grounds of race by the first respondent in the failure to appoint her to the post of bilingual secretary on or about 10 September 2008

3. that the claimant was discriminated against on the grounds of race, sex and age by the first respondent in the arrangements made to determine who should be appointed to the post of bilingual secretary on or about 10 September 2008

4. that the first respondent is hereby ordered to pay to the claimant the sum of £5,500 in respect of injury to feelings together with the sum of £1423.38 in respect of loss of earnings (total compensation of £6923.38)

Constitution of Tribunal:

Chairman: Ms Turkington

Members: Mr Lindsay

Mrs Gregg

Appearances:

The claimant appeared and was represented Mr G Grainger, barrister-at-law, instructed by the Equality Commission for Northern Ireland.

The respondents did not appear and were not represented.

The Claims

1. The claimant’s claims were for discrimination on the grounds of race under the Race Relations (Northern Ireland) Order 1997 (as amended) (“the RRO”); discrimination on the grounds of sex under the Sex Discrimination (Northern Ireland) Order 1976 (as amended) (“the SDO”) and discrimination on the grounds of age under the Employment Equality (Age) Regulations (Northern Ireland) 2006 (“the EEA Regs”).

The Issues

2. The issues which the tribunal had to determine were as follows:-

(a) the correct respondent. At the outset of the hearing, counsel for the claimant confirmed that the claims against the second respondent, the Managing Director of the first respondent, were not being pursued. Accordingly, the tribunal ordered that the claims against the second respondent are dismissed;

(b) whether the claimant was subject to direct discrimination on the grounds of her national origin by the first respondent by reason of its failure to appoint her to the post of bilingual secretary on or about 10 September 2008;

(c) whether the claimant was subject to direct discrimination on the grounds of her race by the first respondent in the arrangements made to determine who should be appointed to the post of bilingual secretary on or about 10 September 2008;

(d) whether the claimant was subject to indirect discrimination on the grounds of her national origin by the first respondent by reason of its failure to appoint her to the post of bilingual secretary on or about 10 September 2008;

(e) whether the claimant was subject to direct discrimination on the grounds of her sex by the first respondent in the arrangements made to determine who should be appointed to the post of bilingual secretary on or about 10 September 2008;

(f) whether the claimant was subject to direct discrimination on the grounds of her age in the arrangements made to determine who should be appointed to the post of bilingual secretary on or about 10 September 2008;

Sources of Evidence

3. The tribunal heard evidence from the claimant and was also referred to a number of documents in the tribunal bundle prepared by the claimant’s representatives. The tribunal also considered the response form and other documents submitted on behalf of the respondents, including the respondents’ replies to the claimant’s request for Additional Information (“the Replies”).

Findings of Fact

4. Having considered the evidence given by the claimant, the documents referred to by the claimant’s counsel, the response form, the Replies and the submissions made by the claimant’s counsel, the tribunal found the following relevant facts:-

(1) The claimant was born on 29 May 1985 in Northern Ireland and was raised in Northern Ireland. The claimant’s first language is English.

(2) The claimant holds a BA Hons degree in Spanish and European Studies from the University of Ulster. She has also spent time working in Spain and studying at a Spanish University where all classes and exams were conducted in Spanish. The tribunal finds as a fact that the claimant was fluent in Spanish. The claimant was working as an administration assistant during the course of 2008. She also had previous experience in customer service roles, a number of which also involved certain administrative duties.

(3) In early September 2008, the first respondent advertised a job vacancy for a bilingual secretary. The salary for the post was to be £13000 to £15000. The Job Card for the post stated “the ideal candidate should have a good enough level of Spanish to be able to communicate with Head Office over email and phone and follow instructions accordingly”. Under the heading of “Qualifications/experience”, the Job Card continued “must be fluent in English and Spanish, computer literate (Excel) and have excellent organisational skills, preferably the candidate should have office/admin experience, knowledge of sage accounts system”.

(4) In September 2008, the claimant was registered with Apple Recruitment Agency. On or about 9 September 2008, Mr McFarlane of Apple phoned the claimant and informed her that he had arranged for her to be interviewed the next morning for the post of bilingual secretary with the first respondent. The claimant’s cv had been submitted to the first respondent by Mr McFarlane.

(5) On 10 September 2008, the claimant attended for interview at the first respondent’s premises in Falcon Road, Belfast. The claimant was interviewed by two representatives of the first respondent, namely Mr Fox, Manager, and Ms Goyal, who is Spanish.

(6) The interview was very short, only 10 to 15 minutes. The claimant was not asked any questions in relation to the ICT, administrative or organisational skills referred to in the Job Card for the post. The claimant was asked in very general terms whether she had used computers. The claimant was not asked about her previous work experience.

(7) The interview was conducted in both Spanish and English. There was a telephone in the interview room. In the course of the interview, Ms Goyal made a telephone call. This took the claimant by surprise. Ms Goyal spoke on the telephone to someone in Spain whom the claimant understood to be Ms Goyal’s manager.

(8) After this telephone conversation, Ms Goyal asked the claimant her age. She also asked the claimant, firstly, if she was married, secondly, if she had a boyfriend, thirdly, if she wanted to have a boyfriend and, fourthly, if she had children.

(9) After being asked these questions, the claimant felt very embarrassed. She was thrown by these questions and therefore felt that she was not able to properly demonstrate her abilities. The claimant felt very angry and hurt that the first respondent had thought it could ask such personal questions at an interview. The claimant wanted to leave the interview as quickly as possible. The interview ended very quickly after these questions were asked. The claimant felt awkward and was unable to ask questions of the interviewers at the end of the interview.

(10) The tribunal found as a fact that the manner of Ms Goyal during the interview was unfriendly and abrupt. The tribunal further found that Ms Goyal displayed a lack of enthusiasm and disdain towards the claimant as a potential candidate for the post.

(11) Ms Goyal took notes during the interview, but no such notes were provided on discovery.

(12) The claimant spoke to Mr McFarlane of Apple Recruitment the next day and reported what had happened at the interview. Mr McFarlane agreed to speak to the first respondent. He later reported to the claimant that he had spoken to Ms Goyal and this had been an unpleasant telephone conversation. Ms Goyal had said that she did not think the questions asked at interview were inappropriate. Mr McFarlane wrote to the claimant on 12 September 2008. In this letter, he confirmed that another candidate registered with Apple (whom the tribunal understands to be female) had brought up the same issues as the claimant.

(13) On 22 September 2008, the claimant wrote to the first respondent to complain about the questions asked at interview which she regarded as inappropriate. The claimant set out her belief that she had been discriminated against on the grounds of her sex. The claimant did not receive any reply from the first respondent.

(14) In the course of these proceedings, it became clear that the candidate appointed to the post of bilingual secretary was a Spanish national and native Spanish speaker. In the Replies, the first respondent indicated that the decision as to who should be appointed to the post was taken according to the Spanish level of the candidates. The first respondent also stated that a perfect Spanish level was required. The first respondent also contended in the Replies that the claimant’s Spanish level was not fluent and that she made basic linguistic errors when she spoke in Spanish in the course of the interview.

(15) The tribunal finds as a fact that the claimant was at least as well qualified and had comparable work experience and skills to that of the successful candidate Ms Beltran. The tribunal further finds as a fact that the claimant did not make basic linguistic mistakes in Spanish during the course of the interview.

(16) The starting salary of Ms Beltran in the post was £14,000 per annum.

(17) On 5 November 2008, the claimant served a statutory questionnaire in relation to alleged discrimination alleging that she had been asked inappropriate questions at interview in relation to her age, marital status, current relationship status and whether she had any dependants. The first respondent failed to serve replies to this questionnaire within the statutory time limit. Replies were eventually furnished to the claimant’s representative at a Case Management Discussion on 26 May 2009.

(18) There were no pre-set questions for the interview. The first respondent did not have any Equal Opportunities Policy nor any Recruitment and Selection Policy and Procedure. The first respondent had not provided any relevant training in recruitment and selection or equal opportunities to the interviewers.

(19) After she was unsuccessful at interview for this post, the claimant continued to work on a temporary basis in an administration post in which she earned an average of £149.28 net per week. On 19th January 2009, she began work for a firm of solicitors earning £187.50 net per week. The claimant continued in that post until she left on or about 16 September 2009 to return to University to undertake a Masters degree.

(20) The claimant continues to feel angry and hurt about the manner in which she was treated by the first respondent at the interview and thereafter.

Statement of Law

Discrimination on the grounds of race

5. By article 3(1) of the RRO, a person discriminates against another if, on racial grounds, he treats that person less favourably than he treats or would treat others. This is generally known as direct discrimination on grounds of race.

6. For the purposes of the RRO, “racial grounds” means grounds of colour, race, nationality or ethnic or national origins.

7. By article 6(1) of the RRO, it is unlawful for a person to discriminate against another by refusing or deliberately omitting to offer that other employment.

8. Article 3 (1A) of the RRO states as follows:-

“A person also discriminates against another if, in any circumstances relevant for the purposes of any provision referred to in paragraph (1B), he applies to that other a provision, criterion or practice which he applies or would apply equally to persons not of the same race or ethnic or national origins as that other, but—

(a) which puts or would put persons of the same race or ethnic or national origins as that other at a particular disadvantage when compared with other persons;

(b) which puts that other at that disadvantage; and

(c) which he cannot show to be a proportionate means of achieving a legitimate aim.”

This is generally known as indirect discrimination on the grounds of race.

9. Article 52A of the RRO, which applies to the employment provisions of the RRO, states as follows:

“Burden of proof: industrial tribunals

52A. — (1) This Article applies where a complaint is presented under Article 52 and the complaint is that the respondent—

(a) has committed an act of discrimination, on grounds of race or ethnic or national origins, which is unlawful by virtue of any provision referred to in Article 3(1B) (a), (e) or (f), or Part IV in its application to those provisions, or

(b) has committed an act of harassment.

(2) Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent—

(a) has committed such an act of discrimination or harassment against the complainant,

(b) is by virtue of Article 32 or 33 to be treated as having committed such an act of discrimination or harassment against the complainant,

the tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed, that act”.

In the case of Igen v Wong [2005] EWCA Civ 142, [2005] IRLR 258, [2005] ICR 931, the English Court of Appeal approved, with certain minor modifications, the general guidelines laid down in the previous case of Barton as to the impact of provisions in the same terms as article 52A of the RRO. The Court of Appeal confirmed that a two-stage process is required of tribunals in cases where direct discrimination is alleged. First, the claimant has to prove facts from which the tribunal could conclude there had been unlawful discrimination. Once the tribunal is satisfied on that basis, the burden of proof shifts to the respondent (employer) who has to show that he did not commit (or is not to be treated as having committed) the unlawful act. In considering whether the claimant has proved facts from which the tribunal could conclude that the respondent had committed an act of unlawful discrimination, the tribunal can draw appropriate inferences from the primary facts. In considering what inferences it is appropriate to draw from the primary facts, the tribunal should proceed on the basis that there is no adequate, non-discriminatory explanation for those facts.

Discrimination on the grounds of sex

10. By article 3(2) of the SDO, a person discriminates against a woman if on the ground of her sex, he treats her less favourably than he treats or would treat a man.

11. Pursuant to article 8(1) (a) of the SDO, it is unlawful for a person, in relation to employment by him at an establishment in Northern Ireland, to discriminate against a woman in the arrangements he makes for the purposes of determining who should be offered that employment.

12. Article 63 A of the SDO which applies to the employment provisions of the SDO states as follows:-

13. “Burden of proof: industrial tribunals

63A. — (1) This Article applies to any complaint presented under Article 63 to an industrial tribunal.

(2)Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent—

(a) has committed an act of discrimination [or harassment] against the complainant which is unlawful by virtue of Part III, or

(b) is by virtue of Article 42 or 43 to be treated as having committed such an act of discrimination [F2 or harassment] against the complainant,

the tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed, that act”

The tribunal must approach the question of burden of proof in accordance with the principles set out in the Igen case as described at para 9 above.

Discrimination on the grounds of age

14. By article 3(1) of the EEA Regs, a person “A” discriminates against a person “B” if, on the grounds of B’s age, A treats B less favourably than he treats or would treat other persons.

15. Pursuant to article 7 (1) of the EEA Regs, it is unlawful for an employer, in relation to employment by him an establishment in Northern Ireland, to discriminate against a person in the arrangements he makes for the purposes of determining who should be offered that employment.

16. Article 42 of the EEA Regs, which applies to the employment provisions of the Regulations, states as follows:-

“Burden of proof: industrial tribunals

42. (1) This regulation applies to any complaint presented under regulation 41 to an industrial tribunal.

(2) Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this regulation, conclude in the absence of an adequate explanation that the respondent—

(a) has committed against the complainant an act to which regulation 41 (jurisdiction of industrial tribunals) applies; or

(b) is by virtue of regulation 26 (liability of employers and principals) or regulation 27 (aiding unlawful acts) to be treated as having committed against the complainant such an act,

the tribunal shall uphold the complaint unless the respondent proves that he did not commit, or as the case may be, is not to be treated as having committed, that act.”

The tribunal must approach the question of burden of proof in accordance with the principles set out in the Igen case as described at para 9 above.

Conclusions

Discrimination on the grounds of race – direct discrimination

17. The tribunal firstly considered the claimant’s claims in respect of alleged discrimination on the grounds of race. The tribunal was required to determine whether the claimant had suffered direct discrimination on the grounds of race in the respondent’s failure to appoint her to the post of bilingual secretary in September 2008. The tribunal was therefore required to determine whether the claimant had been less favourably treated on grounds of her race.

18. In essence, the claimant’s contention was that she had been discriminated against on the grounds of her national origins. The tribunal found as a fact that the claimant was born and raised in Northern Ireland whereas the successful candidate was born and raised in Spain. The tribunal also found as a fact that the claimant was fluent in Spanish and was at least as well qualified and had comparable work experience and skills to that of the successful candidate Ms Beltran.

19. The tribunal noted that the Job Card for the post referred to the requirement for a “good enough” level of Spanish to enable the job holder to communicate with the respondent’s Head Office in Spain. The Job Card also indicated that the successful candidate would require certain ICT, administrative and organisational skills. The claimant was not, however, asked any questions about these matters at the interview.

20. However, the Replies stated that “there were no criteria applied for the post. The decision was taken according to the Spanish level of the candidates”. The tribunal further noted that the successful candidate was described as “excellent Spanish level (native)”. The respondent also stated in its Replies that “a perfect Spanish level is required”.

21. The tribunal also noted that the respondent failed to respond to the claimant’s statutory questionnaire within the statutory time limit and indeed replies were served many months outside that time limit. The first respondent also failed to produce any notes of the interview on Discovery, even though the tribunal found as a fact that notes had been taken during the interview by Ms Goyal. The tribunal also found as a fact that the manner of Ms Goyal during the interview was unfriendly and abrupt. The tribunal further found that Ms Goyal displayed a lack of enthusiasm and disdain towards the claimant as a potential candidate for the post.

22. The tribunal found as fact that there were no pre-set questions for the interview. The first respondent did not have any Equal Opportunities Policy nor any Recruitment and Selection Policy and Procedure. The first respondent had not provided any relevant training in recruitment and selection or equal opportunities to those involved in this interview. It was therefore clear to the tribunal that, in the course of this recruitment exercise, the respondent had failed to comply with both the letter and spirit of the Equality Commission’s Code of Practice in relation to Race Relations. Indeed, the tribunal agreed with the claimant’s counsel’s comment that, in this case, the Code was more honoured in the breach.

23. In view of the matters referred to at paras 19 to 23 above, the tribunal was prepared to draw an inference from the relevant primary facts that, whilst the first respondent referred to the requirement for a perfect level of Spanish, this in effect meant that the successful candidate would have to be a native Spanish speaker. The tribunal was therefore satisfied that the reason for the failure to appoint the claimant to the post was related to the claimant’s national origin and the burden of proof shifted to the first respondent in accordance with the principles outlined at para 9 above.

24. The first respondent did not appear at the hearing and the tribunal therefore did not have the opportunity of hearing oral evidence on behalf of the first respondent. The tribunal did, however, consider the written material before it, including the respondent’s response form, its replies to the statutory questionnaire and the Replies. The tribunal concluded that those documents did not disclose any adequate non-discriminatory explanation for the treatment afforded to the claimant by the first respondent. Indeed, the content of those documents served to reinforce the tribunal’s view that the claimant had suffered direct discrimination on the grounds of race in the course of this recruitment exercise.

25. The tribunal therefore had no hesitation in concluding that the claimant was directly discriminated against on the grounds of race by the first respondent in the failure to appoint her to the post of bilingual secretary on or about 10 September 2008.

26. The tribunal was also satisfied that the application of the requirement to have a perfect level of Spanish resulted in direct discrimination against the claimant in the arrangements made by the first respondent for the purpose of determining who should be appointed to the post.

Discrimination on the grounds of race – indirect discrimination

27. The tribunal was also required to consider whether the claimant was subject to indirect discrimination in the failure by the first respondent to appoint her to the post of bilingual secretary. The tribunal first had to consider whether the first respondent had applied a relevant provision, criterion or practice.

28. In this case, the tribunal had little difficulty in identifying that the first respondent had applied the criterion of a “perfect Spanish level” as set out in the Replies. It was clear from the Replies that this criterion was applied to all candidates. The tribunal was also satisfied that this was to the disadvantage of any candidates who were non-native Spanish speakers and that this criterion did place the claimant at a particular disadvantage. The tribunal therefore considered that sub-paras (a) and (b) of article 3 (1) (A) of the RRO (see para 8 above) were satisfied in this case.

29. The tribunal then proceeded to consider whether the first respondent could show that the application of this criterion represented a proportionate means of achieving a legitimate aim. The tribunal did not hear any oral evidence on behalf of the first respondent, but the tribunal nevertheless considered the first respondent’s position as set out in the documents before it. It was clear from the Replies that its position was that a “perfect Spanish level” was necessary to enable the post holder to communicate with head office in Spain. In considering this matter, the tribunal took account of the Equality Commission’s Code of Practice in relation to Race Relations which states (at page 8) that an example of indirect discrimination may be where “an employer requires higher language standards than are needed for safe and effective performance of the job”. The tribunal was of the view that the requirement for a “perfect” Spanish level was disproportionate given the nature of the job. The tribunal felt that the criterion set out in the Job Card of a “good enough level of Spanish to be able to communicate with Head Office” was adequate for the requirements of the post. The application of this potentially indirectly discriminatory criterion was therefore not justified on the facts of this case.

30. Accordingly, the tribunal concluded that the claimant also suffered indirect discrimination on the grounds of her national origins in the failure by the respondent to appoint her to the post of bilingual secretary.

Discrimination on the grounds of sex

31. The claimant contended that she was subject to unlawful discrimination on the grounds of her sex when she was asked at interview firstly, if she was married, secondly, if she had a boyfriend, thirdly, if she wanted to have a boyfriend and, fourthly, if she had children. The tribunal found as a fact that the claimant was indeed asked each of these questions. The tribunal also found that another (female) candidate had been asked the same questions. The first respondent initially admitted in its response form that these questions had been asked of the claimant at interview and then at a later stage sought to withdraw these admissions.

32. The tribunal referred to the Equality Commission’s Code of Practice on Removing Sex Bias from Recruitment and Selection. The tribunal took account of the recommendation that:-

“questions should not be asked about a candidate’s marital status, children or other personal circumstances and stereotyped assumptions based on this type of information should not be made”.

33. There was no direct evidence available to the tribunal as to whether or not the same questions were asked of the only male candidate for the post. However, it is clear that the first respondent in its response form, the Replies or at any of the CMDs, never sought to make the case that these questions were asked to candidates of both genders.

34. It was clear that the answers to these questions were of no relevance whatsoever to the ability of the claimant to meet the requirements of this job. The tribunal had no doubt that these questions were inherently potentially discriminatory on the grounds of sex. In the circumstances, and particularly in view of the flagrant breach of provisions of the relevant Code of Practice and the facts set out at paras 4(6), (10), (11), (17) and (18) above, the tribunal was prepared to infer that the first respondent put these questions only to female candidates including the claimant. Therefore, the tribunal was satisfied that the burden of proof shifted to the first respondent under article 63A of the SDO as outlined at para 13 above. The tribunal once again considered the content of the documents submitted by the first respondent and other documents contained in the tribunal bundle and could not identify any adequate and non-discriminatory explanation put forward by the first respondent.

35. The tribunal was therefore satisfied that the claimant was subjected to less favourable treatment on grounds of her sex by these inappropriate questions being asked at interview. The tribunal was further satisfied that the asking of these questions constituted a detriment since the claimant was so shocked by this treatment of her that this adversely affected the claimant’s performance for the remainder of the interview.

36. Accordingly, the tribunal concluded that the claimant was subjected to unlawful discrimination on the grounds of her sex in the arrangements made by the first respondent to determine who should be appointed to the post of bilingual secretary.

Discrimination on the grounds of age

37. The claimant contended that she was subject to unlawful discrimination on the grounds of her age when she was asked about her age at interview. The tribunal found as a fact that the claimant was indeed asked her age. The tribunal also found that another candidate had been asked the same question. The first respondent initially admitted in its response form that this question had been asked of the claimant at interview but then at a later stage sought to withdraw these admissions.

38. The tribunal referred to the Equality Commission’s Guide for Employers in relation to the EEA Regs. The tribunal took account of the recommendation that employers should “avoid asking questions related to age”. The tribunal considered that this was obviously intended to include very direct questions such as asking the employee to confirm their age.

39. There was no direct evidence available to the tribunal as to whether or not this question was put to all candidates for the post. However, the first respondent never sought to make the case that this question was asked of all candidates regardless of age.

40. It was clear that the answer to the question regarding the claimant’s age was of no relevance whatsoever to the ability of the claimant to meet the requirements of this role. Therefore, in the circumstances, and particularly in view of the flagrant breach of both the letter and spirit of the relevant guidance and the facts set out at para 4 (6), (10), (11), (17) and (18) above, the tribunal was prepared to infer that the claimant was treated less favourably by being asked this question than candidates of a different age group or perceived age group would have been. Therefore, the tribunal was satisfied that the burden of proof shifted to the first respondent under article 42 of the EEA Regs as outlined at para 16 above. The tribunal again considered the content of the documents submitted by the first respondent and other documents contained in the tribunal bundle and could not identify any adequate and non-discriminatory explanation put forward by the first respondent.

41. The tribunal was therefore satisfied that the claimant was subjected to less favourable treatment on grounds of her age or perceived age by being asked about her age at interview. The tribunal was further satisfied that the asking of this question as part of a series of irrelevant and inappropriate questions constituted a detriment since the claimant was so shocked by this treatment of her that this adversely affected the claimant’s performance for the remainder of the interview.

42. Accordingly, the tribunal concluded that the claimant was subjected to unlawful discrimination on the grounds of her age or perceived age in the arrangements made by the first respondent to determine who should be appointed to the post of bilingual secretary.

Compensation – loss of earnings

43. Having concluded that the claimant was subjected to unlawful discrimination as outlined above, the tribunal proceeded to consider the question of compensation. The tribunal was satisfied that the claimant was entitled to compensation for loss of earnings attributable to discrimination on the grounds of race in the failure of the respondent to appoint her to the post in question. It is clear that the respondent wanted the successful candidate to commence in the post as quickly as possible and that the claimant could have started immediately. Therefore, the tribunal has determined that the claimant would have started in the post on 15 September 2008.

44. On the basis that the claimant finished work to return to University around 15 September 2009, the tribunal decided to award one year’s loss of earnings calculated as follows:-

From 15 September 2008 to 16 January 2009 (18 weeks)

The claimant’s earnings through Grafton Recruitment totalled £2687.02 net = £149.28 per week).

If appointed to the post of bilingual secretary at a salary of £14,000 per annum (£10,500 net), the claimant’s net earnings would have been £201.92 per week.

Loss of earnings = (£201.92 - £149.28) x 18 = £947.52

From 19 January 2009 to 16 September 2009 (33 weeks)

The claimant’s earnings from her employment by a firm of solicitors were based on a salary of £13,000 per annum (£9750 per annum net) or £187.50 per week net.

If appointed to the post of bilingual secretary, the claimant’s net earnings would have been £201.92.

Loss of earnings = (£201.92 - £187.50) x 33 = £475.86

TOTAL financial loss from 15 September 2008 to 16 September 2009 = £1423.38

Compensation - Injury to feelings

45. The tribunal was satisfied that the claimant was entitled to an award for injury to feelings. At the time of the interview, the claimant felt embarrassed, angry and hurt that the respondent had felt able to ask her questions which she felt were entirely inappropriate. The tribunal found as a fact that, at the date of hearing, the claimant continued to feel angry and hurt about the manner in which she was treated by the first respondent at the interview and thereafter. The tribunal found the claimant to be entirely candid and straightforward in her account of how this treatment had impacted on her.

46. The tribunal assessed the award for injury to feelings in this case at the very top end of the lowest of the bands in the Vento case that is £5,000 and the tribunal up-dated this figure in accordance with recent rulings both locally and by the EAT in order to take account of inflationary factors since the Vento bands were determined. Accordingly, the tribunal concluded that the appropriate award for injury to feelings in this case was £5,500.

Concluding remarks

47. The tribunal wishes to place on record its shock and dismay at the treatment afforded to the claimant in this case. Having heard the evidence, the tribunal was satisfied that the first respondent effectively set out to recruit a native Spanish speaker for this post with the likelihood being that the successful candidate would be a Spanish national. The tribunal was also left with the strong suspicion that the first respondent’s purpose in asking a series of inappropriate, irrelevant and potentially discriminatory questions was to assess whether the claimant was likely to require maternity leave in the near future. Finally, the tribunal wishes to record that it was appalled at the first respondent’s complete disregard for accepted standards of practice in relation to recruitment and selection as set out in the Equality Commission’s Codes of Practice and guidance for employers.

Interest

48. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing: 11 and 12 November 2009, Belfast

Date decision recorded in register and issued to parties: